The State of Texas Cannot Execute The Mentally Retarded, But That May Not Prevent A Dallas Cop Killer From Being Put To Death.

Cops approach domestic disturbance calls with an abundance of caution, knowing that these situations are highly unpredictable and can escalate quickly, turning dangerous, even deadly. When an officer pulls up to a residence, they don't know who's armed. Who's on drugs. Who's been drinking. And who's so pissed off they won't hesitate to use a weapon on anyone who gets in their way—including the police.

But it was the thrill of public service—the high speed and flashing lights—that drew Dallas Police Officer Brian Jackson to the job, according to his father. Every moment on the clock counted. Every call could mean the opportunity to counsel a gang member or calm the nerves of a frightened child or take a bad guy off the streets. Impressed by the Dallas Police Department, Jackson knew he wanted to become a Texan in 2000, when he and his girlfriend packed up their life in Newport, Rhode Island, so that Brian could wear a DPD uniform.

Brian, at 23, had passed up a job with the New York City Police Department to join the Dallas force. And it was no surprise to his father, retired Navy Captain John Jackson, to see how easily his son, an Eagle Scout, made the transition to Texas, wearing cowboy boots and hats. "They called him a New England Yankee that could wear his boots with the best of them," his father remembers.

A billboard suggested to passersby that Officer Brian Jacksons service to Dallas would not be forgottennor would his killer,
the man who, prosecutors argued, broke the thin blue line between law-abiding citizens and chaos.

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Five years later, Jackson married his Rhode Island sweetheart, JoAnn. He seemed to make every tick-tock of his time, on duty and off, count—he'd go to visit his wife on dinner breaks but stretch out every minute of service to the city and his fellow officers. On November 13, 2005, he had 20 minutes left on his shift. He decided to answer one last call before heading home. It was a domestic disturbance.

Just as no one questions Jackson's dedication to public service, no one questions that in the early hours of that mid-November morning, an illegal Mexican immigrant named Juan Lizcano shot and killed Officer Jackson. He was 28.

Drunk and angry, Lizcano had been out all night, as he was most every weekend, pounding beers at a dance club with his friends. Convinced that his ex-girlfriend, Marta Cruz, was sleeping with other men, Lizcano, a yard man, made angry cell phone calls to her before showing up at her house in the Knox-Henderson area. It was 2 a.m. He had a gun. She let him inside, where he fired a shot into the ceiling before pointing the gun at her. "Next time," he told Cruz, "it will be you."

Terrified for her life, Cruz called the police as Lizcano sped away in his truck. Forty-five minutes later, the police were still near Cruz's house when Lizcano returned, still drunk, still armed. When he saw the cops, he sprinted down an alley behind the house, firing shots at police in pursuit. Slipping through a side yard in the darkness, Lizcano rounded a corner to find Officer Jackson with his gun drawn. Lizcano then pulled the trigger. The bullet bypassed the officer's outstretched right hand, flew through the armhole of his bulletproof vest and hit him in the heart. A million-to-one shot, it fatally wounded him.

Lizcano then threw down his gun and laid face-down on the ground. Jackson was taken to Baylor Hospital, where doctors pronounced him dead.

Five years later, Juan Lizcano remains embroiled in the prolonged, complicated appeals process that comes with a capital conviction and a death sentence. Now the question is not whether he is a cop killer, which a jury had little trouble deciding in November 2007, but whether evidence, presented at trial and newly discovered, proves he is mentally retarded and therefore ineligible for execution.

In 2002, the U.S. Supreme Court prohibited the execution of the mentally retarded in Atkins v. Virginia, banning such executions as a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. The court found that there was a national consensus against executing the mentally retarded. At the time, 17 states (not Texas) had laws on their books banning the practice, as did Congress. The court felt that executing the mentally retarded—who have a propensity toward impulsive behavior and the intellectual capacity of young children—serves no valid death penalty objective—neither retribution nor deterrence. Additionally the court stated that the chance of wrongful convictions in capital cases was greater with mentally retarded defendants, whose faulty memories might be of little assistance in their defense and whose tendency to be followers might result in false confessions to the police.

To define mental retardation, the Atkins court relied on the generally accepted clinical diagnosis, which characterizes mental retardation as "significantly sub-average intellectual functioning"—an IQ of about 70 or below—accompanied by significant limitations in adaptive functioning such as communication, self-care and social skills. These intellectual and adaptive deficits must manifest themselves before the age of 18.

But the Supreme Court left to states "the task of developing an appropriate way" to enforce its ban. Even before the Atkins ruling, in 2001, Texas legislators passed a bill prohibiting the execution of the mentally retarded, but Governor Rick Perry vetoed the legislation. Since Texas was left with no statute, it fell upon the Texas Court of Criminal Appeals in a case called Ex parte Briseno, to come up with "temporary judicial guidelines" until the legislature could take up the matter, which it still hasn't done.